Tin Processing Co.Download PDFNational Labor Relations Board - Board DecisionsDec 20, 194880 N.L.R.B. 1369 (N.L.R.B. 1948) Copy Citation In the Matter of TIN PROCESSING CORPORATION, EMPLOYER and OIL WORKERS INTERNATIONAL UNION, CIO, PETITIONER Case No. 16-RC-191.-Decided December 20,1948 DECISION AND DIRECTION OF ELECTIONS Upon an amended petition duly filed, hearing in this case was held at Texas City, Texas, on August 6, 1948, before James R. Webster, hearing officer. At the hearing, the Employer and the intervening Tin Smelter Workers Union, Local No. 23198, AFL, herein called the Tin Smelters, moved individually and jointly to dismiss the petition and to strike the intervention of Lodge 1446, International Associa- tion of Machinists, herein called the Machinists, on various grounds." The hearing officer reserved ruling on these motions to the Board.2 For the reasons hereinafter stated the several motions of the Employer and the Tin Smelters made at the hearing and following the hearing, are hereby denied. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Em- ployer's request for.oral argument is hereby denied, as the record and briefs, in our opinion, adequately present the issues and the positions of the parties. i The Tin Smelters moved to strike the intervention of the Machinists upon the ground that it was improperly seeking to establish units and represent employees therein by a means other than that provided for in Section 9 (c) (1) of the Act as set forth in the Board's Rules and Regulations . It is contended that the rules provide for the raising of the question of representation of employees in a specified unit only by means of a petition duly filed under this section . We find no merit to this contention. We have customarily allowed the issue of craft severance to be raised by intervention and proper showing of interest in the units sought without the necessity of filing a separate petition covering the craft group. Furthermore , the date of signing authorization cards submitted in sup- port of a showing of interest , like other relative issues, is solely a matter of administrative determination and not subject to collateral attack at the hearing . Matter of Noblitt- Sparks, Inc., 76 N. L. R. B. 1230. ' There was also reserved to the Board, the hearing officer 's motion to incorporate as part of the record for the purpose of showing the history of collective bargaining in this plant, a number of prior Board proceedings involving employees of the Employer. Since the Board takes judicial notice of prior proceedings before it, there is no necessity to incorporate such prior proceedings to establish the fact of bargaining history. The motion to incorporate is therefore denied. See Matter of Bethlehem Steel Corp ., 30 N. L. R. B. 1006 ; Matter of Wichita Transportation Corporation , 73 N. L . R. B. 1070. 80 N. L . R. B., No. 212. 1369 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members. * Upon the entire record in the case the National Labor Relations Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations named herein claim to represent em- ployees of the Employer. 3. The question concerning representation : Among the grounds urged by the Employer and the Tin Smelters as basis for a motion to dismiss the petition was an allegation that the CIO Organizing Committee, which organization is not in compliance with section 9 (f), (g) , and (h) of the Act, was using the named Petitioner as a "front" to circumvent the provisions of that Section of the Act. The Employer and Tin Smelters point to the fact that the organizing campaign was conducted by the CIO Organizing Com- mittee, and that but for the fact that neither the Steel Workers nor the Mine, Mill and Smelter Workers is in compliance with the pro- visions of Section 9 (f), (g), and (h) of the Act, either of those unions, in preference to the Petitioner, would have been the logical organization to file a petition in this proceeding. In support of this contention, the Employer and Tin Smelters urge the fact that both the original and the amended petition were signed by Robert Oliver, State Director, CIO Organizing Committee; it is, therefore, con- tended that the CIO Organizing Committee is the real party in in- terest. We note, however, that demand for recognition was made by the International Representative, Oil Workers International Union, and that unrebutted testimony indicates that the State Director, CIO Organizing Committee, has been given written authority to sign peti- tions on behalf of the Oil Workers International Union, the Petitioner in this proceeding. In addition thereto, all membership application cards presented by the Petitioner to the Board to establish the sub- stantiality of interest in the present case were made out in the name of the Oil Workers International Union. These facts would tend to establish that the named Petitioner is the real party in interest 3 Fur- thermore, the fact that the Petitioner contemplates establishing a local *Reynolds, Murdock , and Gray. 8 Matter of Mississippi Products , Inc., 78 N. L. R. B. 873 ; Matter of McGraw-Curran Lumber Co ., Inc., 79 N, L. R. B. 705. TIN PROCESSING CORPORATION 1371 if it wins the election does not nullify the conclusion that it is entitled to maintain the present proceeding in its own behalf.' The Employer and Tin Smelters further urge a contract bar with respect to the present proceeding. The Employer and the Tin Smelt- ers have negotiated collective bargaining agreements since 1942, covering a production and maintenance unit which was established as a result of a consent election conducted under the auspices of the Board. The most recent contract between the Employer and the Tin Smelters covering the employees involved herein was for a period of one year from August 7, 1947. This contract provided for its auto- matic renewal thereafter from year to year in the absence of notice by either party at least 30 days prior to the termination date, of a desire to change or terminate the contract. The Employer and Tin Smelters contend that since neither party thereto gave notice to the other of a desire to terminate or alter the contract, the contract was automatically renewed by operation of its own terms and is, therefore, a bar to a determination of representatives. It appears, however, that by letter dated June 5, 1948, the Petitioner herein demanded recognition as bargaining representative of certain employees of the Employer,5 and thereafter filed its petition before the automatic renewal date, thus preventing the automatically renewed contract from operating as a bar to the present proceeding.,, We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Employer and the intervening Tin Smelters are in substantial agreement with the Petitioner that the unit should consist of all pro- duction and maintenance employees including laboratory employees and leadmen, but excluding all office and clerical , administrative, executive, and professional employees, plant protection employees, all supervisors and employees of the Electrical Department and the Pipe I The Board has held that whether or not a local union is established, and whether or not its officers will comply with the Act is conjectural and too premature to warrant con- sideration. Matter of Granite Textile Mills, Inc., 76 N. L. R. B. 613; Matter of Oppen- heim Collins d Co., Inc., 79 N. L. R. B. 43. 5 The Employer's reply to the Petitioner's demand was to the effect that the manager, who handled industrial relations, was out of the city. Thereafter, the Petitioner filed its petition herein on June 15, 1948, and its amended petition on June 23, 1948. After the hearing, the Employer moved to dismiss the petition on the ground that it had not refused the recognition demanded by the Petitioner prior to the filing of the petition and prior to the hearing. This motion was based on the principles set forth in Matter of Advance Pattern Company, 79 N. L. R. B. 209. For the reasons set forth in the majority opinion in Matter of Advance Pattern Company, 80 N. L. R. B. 29, the motion is hereby denied. 6 Matter of Firestone Tire and Rubber Company, 76 N. L. R. B. 226, and cases cited therein. 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Department. The intervening Machinists seeks the severance from the production and maintenance unit of four groups which it claims are appropriate craft units. The units requested consist of: (1) All inside and outside machinists classified on the pay-roll as machinists, their helpers, apprentices, and oilers working under the supervision of the machine shop foreman, and including all employees engaged in the erection, assembling, dismantling, maintaining, and/or repairing of machinery by the Employer but excluding supervisors and all other employees; (2) All auto mechanics, truck mechanics, heavy-duty mechanics employed in the auxiliary repair shop, including tool crib attendants, repairmen classified on the pay-roll as machinists but ex- cluding supervisors and all other employees; (3) All truck drivers excluding supervisors and all other employees; (4) All boiler firemen and their helpers, excluding supervisors and all other employees. The Employer opposes the units sought by the Machinists, urging that the tin smelting industry in the United States ° is comparable to the basic steel industry and as such should fall under the principles announced in the National Tube Company case." It is urged that the Board erred in ordering an election in Cases Nos. 16-R-2418 and 16-R-2425 s allowing craft severance elections for separate groups of electricians and pipefitters employed by the Employer.io The Employer's production operations under the supervision of the Plant Superintendent are carried on in several buildings consisting of three departments, i. e., Ore Storage and Ore Dressing, Roasting and Leaching, and Smelting and Refining. The maintenance departments under the supervision of the Maintenance Engineer service the produc- tion operation and consist of the following departments, each under the supervision of a foreman : Auxiliary, Pipefitters, Machinists, Rig- gers, Welders, Electricians, Carpenters, and Painters. A few employees from each maintenance department are assigned directly to each of the three production departments at all times. The other employees from each department are assigned in gangs to handle specific jobs. The Board has determined that separate craft maintenance units in the basic steel industry may not be established because, unlike the usual craft maintenance employees whose work on production equip- T The Employer is engaged as managing agent in the refining of tin on behalf of the Reconstruction Finance Corporation at the latter's Longhorn Tin Smelter plant in Texas City, Texas, and claims that this is the only tin smelter in operation within the confines of North America. 8Matter of National Tube Company, 76 N. L. R. B. 1199. G Matter of Tin Processing Corporation, 78 N. L. R. B. 96. 'D In support of this contention the Employer relies upon Matter of Geneva Steel, 76 N. L. R. B. 150, and Outboard Marine c6 Mfg. Co., 66 N. L. R. B. 1142 , and in this con- nection made its request for oral argument hereinabove referred to. TIN PROCESSING CORPORATION 1373 ment occurs for the most part at irregular intervals, the craft main- tenance employees in the basic steel industry are engaged in a definite program of replacing and repairing on regular succeeding occasions the instrumentalities used in the continuous production of basic steel, and that their functions are therefore intimately connected with the steelmaking process itself. However, the principle announced in the National Tube Company case, supra, is an exception to the general Board policy and is based on the high degree of integration of main- tenance craftsmen with the production employees in the basic steel manufacturing process. It does not appear that a similar situation exists in the tin processing industry. On the contrary, it appears here that substantially all employees in each craft group generally remain in the maintenance divisions from which they are sent out in crews to work wherever the occasion may arise, in much the same manner as general maintenance crews in most industries. We therefore conclude that the facts in the instant case do not warrant a finding that any craft maintenance employees herein are an inseparable part of the over-all production unit. The character of the units proposed by the Machinist8 The Tin Smelters oppose the units sought by the Machinists upon the ground that such units are not true crafts but merely heterogeneous groups of maintenance employees, and that such units are based solely on the "extent of organization," a factor to which the Board may no longer give controlling weight by reason of Section 9 (b) (2) of the Act. More specifically, the Tin Smelters contend that a true craft unit of machinists in this plant would be one identical to the unit of machinists set forth in the agreement for a consent election 11 held on August 5, 1947 12 in a unit consisting of "all machinists and machinist maintenance mechanics, including heavy duty mechanics, automobile mechanics, instrument repairmen, leadmen, helpers and apprentices." It is further contended that oilers are not a part of the machinists craft. The journeymen machinists, their helpers and apprentices, under the supervision of the machine shop foreman, perform the usual duties required of such employees. Another group classified as machinists, u Case No. 16-R-2328. 12 There is no implication in Section 9 (b) (2) of the Act or in Board Decisions that a craft group is entitled to only one opportunity to express its desires as regards separate representation . While the Board has on occasion considered as a factor to be considered in directing a craft severence election , the lack of a previous opportunity for an expression of desire regarding separate representation , it is not an indispensable prerequisite to directing a craft severance election . See Matter of Mergenthaier Linotype Company, 80 N. L. R. B. 132. 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their helpers and apprentices, who do machine repair work in the auxiliary repair shop under the supervision of the auxiliary foreman, also perform highly skilled machine work. 13 Likewise the group of instrument repairmen although under the supervision of the foreman of the Electrical Department, are classified as machinists, and do machinist maintenance repair work on electrical panels and equip- ment.'' Although the machinists in the three groups mentioned above are under separate immediate supervision, they are under the common ultimate supervision of the Maintenance Engineer. Furthermore they perform similar duties requiring the same high degree of skill and are all a part of the same traditional craft to whom the Board has customarily granted the opportunity of separate representation. Because the proposed machinists and mechanics units sought by the Machinists, respectively, comprise only a segment of a craft group pos- sessing similar skills and performing comparable work, we find that such units are not appropriate for the purposes of collective bargain- ing under the meaning of Section 9 (b) of the Act 15 We find, how- ever, that three groups consisting of machinists under the supervision of the machine shop foreman, machinists under the supervision of the auxiliary repair shop foreman and machinists known as instrument re- pairmen, their leadmen, helpers and apprentices, may constitute an appropriate unit. The oilers, on the other hand, follow a regular schedule of lubri- cating all moving parts in the plant. In this plant they are not ma- chinists but unskilled men who have been trained by the Employer in all phases of proper oiling. Although they are under the same super- vision as the shop machinists, the oilers are not a part of the machinists craft nor do they possess mechanical skills comparable to those of the machinists.,,' Accordingly, we shall exclude the oilers from the ma- chinists group. The Employer opposes the separate unit of truck drivers requested by the Machinists upon the ground that their function is actually a part of the production department. These employees are engaged in loading, hauling, and unloading materials for and between the several operational departments on plant property exclusively. In this pro- " Although members of this group have been referred to by the Machinists as automo- tive and truck mechanics , their duties are not limited to the repair of trucks or other garage work, but are largely concerned with the repair of heavy duty machinery and hydraulic equipment The Board in Matter of Tin Processing Corporation, 78 N. L . R. B. 96, determined that instrument repairmen are not a part of the electrical craft and excluded them from the electrical department group in which an election was directed in that proceeding. '5 See Matter of J. L . Shiely Company, 80 N. L. R. B. 119. 14 Matter of Western Electric Company, Inc., 67 N . L. R. B. 977 ; Matter of Edison Gen. eras Electric Appliance Company, Inc., 50 N. L. It. B. 387. TIN PROCESSING CORPORATION 1375, cess they operate gasoline and electric battery driven lift trucks of a• type which are not used on highways. Labor crew employees without previous experience are trained in from 6 hours to 2 weeks to perform this type of work for which chauffeur's licenses are not required. While we have on occasions permitted separate representation for truck drivers who constitute a traditional homogeneous group of skilled employees, the truck drivers herein concerned have duties too closely associated with those of production employees to warrant their being separately represented apart from the production employees 17 Ac- cordingly, we find that the proposed unit of truck drivers is inappro- priate for purposes of collective bargaining. As previously noted, the machinists also seek a unit of boiler firemen and their helpers. The boiler firemen and their helpers tend the. pumps, gauges, and various controls of two isolated waste heat boilers and perform other related duties. The boiler firemen and helpers are a well defined homogeneous group to which the Board has customarily accorded the right of separate representation.18 Accordingly, we be- lieve that the boiler firemen and helpers may in the present instance constitute an appropriate unit. The Board will, however, make no unit determination until it has further ascertained by separate elections the desires of these and other employees in the voting groups described below19 If, in these elec- tions, a majority of the employees in any voting group select the Ma- chinists, they will have been taken to have indicated their desire to constitute a separate bargaining unit. If, on the other hand, the majority of those employees in any voting group select either the Petitioner or the Tin Smelters, they will be taken to have indicated their desire to remain a part of the existing production and mainte- nance unit. We shall direct that the questions concerning representation which exist be resolved by separate elections by secret ballot among em- ployees within the following voting groups : (a) All machinists, including machinists under the supervision of the machine shop foreman, machinists under the supervision of the auxiliary repair shop foreman and machinists known as instrument repairmen, their leadmen, helpers, apprentices, and tool crib attend- ,,See Matter of Astor Packing Company, 80 N. L. R. B . 302. Cf. Matter of Colonial Stores, Inc., 78 N. L. R. B. 1254. 38 Matter of Curtiss-Wright Corp., 77 N. L. R. B. 803. 38 The voting group comprising machinists is broader than any single unit proposed by the Machinists . However , the Machinists has expressed a willingness to represent these employees in a unit found by the Board to be appropriate and has a substantial showing of interest in the revised unit. See Matter of J. S. Abercrombie Company, 58 N. L. R. B. 1013. 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ants, 2' but excluding oilers, supervisors and all other employees of the Employer; (b) All boiler firemen and their helpers, excluding supervisors and all other employees of the Employer; and (c) All remaining production and maintenance employees of the Employer including laboratory employees and leadmen, but excluding all office and clerical, administrative, executive, professional, and plant-protection employees, the electricians and pipefitters, and all supervisors. 5. The Employer and Tin Smelters urge, in view of the provisions of Section 9 (c) (3) of the Act, as amended; 1 that no elections should be conducted at this time. Thus, it is contended that the elections held on July 28, 1948, among the electricians and pipefitters,22 pursuant to Board Direction issued July 2, 1948, in which the Petitioner partici- pated, were conducted in subdivisions of the unit petitioned for herein; that pending the lapse of a 12-month period from the date of the earlier elections, the Act specifically precludes the Board from directing an election at this time in the production and maintenance unit petitioned for herein or in any other subdivision thereof. The Machinists, on the other hand, takes the position that because the ear- lier elections were in craft units, they do not affect employees in the plant other than those employees in the craft units involved in such elections, and relies on Section 9 (b) as support for this position. Inasmuch as the earlier elections were conducted for groups other than those for whom elections are sought in this proceeding, we find that such elections were not held in the same bargaining unit or sub- division thereof within the meaning of Section 9 (c) (3) of the Act, as amended . Accordingly, we find that the elections do not preclude a present election in any unit or units which may be found appropriate in this proceeding. DIRECTION OF ELECTIONS 23 As part of the investigation to ascertain representatives for the purpose of collective bargaining with Tin Processing Corporation, Texas City, Texas, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director 90 Matter of J. B. Cook Auto Machine Company , Inc., 73 N . L. R. B. 249. 32 Section 9 (c) (3) of the National Labor Relations Act, as amended , provides in part as follows : "No election shall be directed in any bargaining unit or any subdivision within which , in the preceding twelve-month period, a valid election shall have been held...." " Cases Nos . 16-RC-2418 and 16-RC-2425, 78 N. L . R. B. 96. " Any participant in the elections herein directed may, upon its prompt request to, and approval thereof by, the Regional Director, have its name removed from the ballot. TIN PROCESSING CORPORATION 1377 for the Sixteenth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the voting groups described in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections, and also ex- cluding employees on strike who are not entitled to reinstatement, to determine : (1) Whether the employees in voting group (a) desire to be repre- sented by Lodge 1446, International Association of Machinists, or by Tin Smelter Workers Union, Local No. 23198, AFL, or by Oil Workers International Union, CIO, or by none; (2) Whether the employees in voting group (b) desire to be repre- sented by Lodge 1446, International Association of Machinists, or by Tin Smelter Workers Union, Local No. 23198, AFL, or by Oil Workers International Union, CIO, or by none; and (3) Whether the employees in voting group (c) desire to be repre- sented by Tin Smelter Workers Union, Local No. 23198, AFL, or by Oil Workers International Union, CIO, or by neither. 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